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ANALYSIS OF DECEMBER 8, 2016 SUPREME COURT OPINION

(Posted December 8, 2016) Today brings us one new published opinion and one brief published order from the Supreme Court. The order is a short affirmance of the Court of Appeals in Currier v. Commonwealth; the court adopts the ruling of the CAV.

The published opinion comes in Johnson v. Commonwealth, a criminal appeal involving three felony convictions for failure to appear. How many times did the defendant fail to appear? Why, once. How does that translate to three felonies? That’s the basis of today’s tale.

Johnson was arrested for three felony offenses, including forgery, all based on alteration of a check he had received from someone else. On the date set for his preliminary hearing, he didn’t appear. A grand jury thereafter indicted him on three counts of failure to appear, and since the underlying offenses were felonies, so were the FTA charges.

Johnson asked the trial court to reduce the number of charges to one, since he had only failed to appear once, on the date and time set for the prelim. The learned judge felt otherwise, reasoning that there were three underlying charges, and Johnson failed to appear on each of them. Johnson then entered conditional guilty pleas – he really didn’t have a defense to the failure to appear – and appealed from the ensuing six-year prison term (with one year to serve).

The Court of Appeals affirmed in a unanimous unpublished opinion, but the justices agreed to take a look. Today, the court splits 5-2 in affirming the three convictions.

The specific holding today is that the “unit of prosecution” for an offense like this is the number of underlying charges. Thus, if Johnson had failed to appear on a dozen related felonies, he would have faced that many additional FTA felonies. Today’s majority (Justice McCullough writes for the court) notes that the statute states that a person who is “charged with a felony offense” and fails to appear is guilty of a felony. The use of the indefinite article a means that the General Assembly must have intended for each underlying charge to count as a separate triggering offense.

Justice Mims, joined by Justice Powell, disagrees. He reasons that the use of the word a merely distinguishes the felony subsection from the companion provision for misdemeanors. The dissent feels that if the legislature had meant what the majority believes it meant, it could have said “each felony” to remove any possibility of ambiguity.

In a footnote, the majority declines to take a route that looked appealing to me – the rule of lenity, which counsels that where a penal statute is found to be ambiguous, courts should resolve the dispute in favor of the defendant. Today’s majority doesn’t find this statute to be ambiguous – a conclusion that admittedly caused an eyebrow to rise just a tad here in Virginia Beach. In my view, it certainly is possible to read the statute in the way the dissent urges. And while I can’t say for sure that that’s what the legislators had in mind, there’s at least a question about it.